In this post, I take to heart Eric Posner's admonition that the scope of executive power in wartime should be determined by the relative strengths and weaknesses of the presidency as an institution rather than by our evaluation of any one president. He is absolutely right that "the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term." He is also right to emphasize that, although there have been many "mediocre" (or worse) presidents, this fact is balanced by the reality that there have also been many mediocre Supreme Court justices and members of Congress. Incompetence and mediocrity is rarely in short supply in any branch of government. I even agree with Posner's claim that the Bush administration has trampled on civil liberties far less than previous wartime administration's, such as Lincoln's, FDR's, and Lyndon Johnson's (a view also endorsed by prominent liberal civil liberties scholar Geoffrey Stone).

Nonetheless, Posner and coauthor Adrian Vermeule are wrong to draw from all this the conclusion that:

The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don't see how any other factor would play a role.

It is true that the executive can act more quickly, decisively, and secretly than Congress or the courts. It is not true that this is the only factor that matters, even in an emergency. The comparative executive advantages stressed by Posner and Vermeule are balanced by several comparative shortcomings. Relative to Congress and the courts, the executive is more likely to fall prey to irrational small-group decisionmaking, more likely to excessively restrict civil liberties, and more likely to fall prey to a short time horizon. Let's unpack these three flaws.

I. Irrational Small-Group Decisionmaking.

A great deal of social science literature shows that, other things equal - small, like-minded groups are more likely to fall prey to error than larger groups with more diverse perspectives. For a good summary of the evidence, see this book by Cass Sunstein. Relative to Congress, the executive is far more likely to fall into the hands of a small group of like-minded individuals. In most administrations, the key decisionmakers are the president himself and a small group of advisers most of whom tend to be adherents of the same party and ideology as he is. It is easy for such a group to fall prey to ideological "groupthink" or simply to persuade themselves that whatever is in their immediate political self-interest is also good for the country.

By contrast, Congress is a much larger and more ideologically diverse body than the executive. Even the members of the president's own party in Congress are likely to be a more diverse group than the top echelon of executive branch advisers. While there are undoubtedly some deluded ideologues in Congress, it is far more difficult for a small group of such people to seize control of the institution than it is for the same thing to happen with the presidency.

Even the Supreme Court, with only nine members, is less prone to this pathology than the executive. Because Supreme Court justices are appointed by different administrations and confirmed by different Senates over a long period of time, the composition of the Supreme Court at any given point in time is likely to be more diverse than that of the executive branch.

II. Incentives to Overrestrict Civil Liberties.

If the nation is hit by a terrorist attack or suffers a military defeat, the executive is far more likely to be blamed for not doing enough to prevent it than Congress or the Supreme Court. Most voters tend to assign the lion's share of responsibility for such setbacks to the president rather than to other branches of government. In principle, the executive is also likely to be blamed for excessive violations of civil liberties. However, in times of crisis, historical evidence strongly suggests that the average voter will care far about security against attack than about even quite flagrant civil liberties violations.

As a result, a politically rational president faced with possible tradeoffs between security liberty is likely to err in favor of former. It may well be politically rational for the president to sacrifice civil liberties for the sake of possible increases in security even in cases where the cost is very high and the benefits very small. This problem is not confined to the Bush administration. Indeed, as I noted in my last post, it was far worse under many previous wartime administrations. The most notorious example is FDR's order to intern the Japanese-Americans during World War II despite the near-total absence of evidence that they posed any real threat.

Congress and the courts are not immune to this pathology. But precisely because they are less likely to be blamed for any security setbacks, they have a comparative advantage in protecting civil liberties. I do not suggest that security should always be sacrificed for the sake of civil liberties. However, it is important that Congress and the courts serve as at least a partial check on presidential excesses in this field.

III. Short Time Horizons.

Presidents are subject to election every four years, and under the Twenty-Second Amemdment, cannot serve more than eight years. By contrast, Supreme Court justices serve for life (an average tenure of 26 years), and many congressional leaders also serve for many years. So to do many rank and file senators and congressmen. Even congressmen, who are up for reelection every two years, are rarely genuinely at risk of defeat this often, because most represent "safe" districts.

For this reason, presidents have much stronger incentives than either Congress or Supreme Court justices to sacrifice the longterm to short-run political expediency. This problem is particularly important during times of war or emergency, when opportunities to score short-term political points at the expense of the long run abound. The tendency to overrestrict civil liberties for the sake of minor or even nonexistent security gains is just one of many such temptations. As a partial (though by no means complete) solution to this problem, it is important that institutions with a relatively more longterm orientation serve as a check on those with a shorter time horizon.

Anyone who would sacrifice a little liberty to gain a little security deserves neither and will lose both.

The wording may be a little off, but that sums up my feelings.

This president really seems to "hear what he wants to hear and disregards the rest." It's not just that he thinks he's right, it's that it seems like the possibility that he could be wrong never crosses his mind.

It may be true that previous presidents limited civil liberties more than the Bush Administration, but isn't it true that at that time there were fewer laws restricting the executive's ability to act (such as FISA)?

Also, isn't there a real question whether we're in a situation that can be called "wartime"?

As another commenter noted in another thread, a lot hinges on the definition of "crisis". No doubt the morning of 9/11 was a crisis, but the question of who to defer to hardly even arises, since Congress and the courts couldn't possibly have done anything in that time frame. But how long after 9/11 (or Pearl Harbor, or Black Tuesday) does the crisis extend? The shorter the timeframe, the stronger the case for deferring to executive action.

"the average voter will care far about security against attack than about even quite flagrant civil liberties violations"

The attitude one takes to this reality is the sum of the difference between Professor Somin and Professors Posner and Vermeule. By Posner and Vermeule's standards, the fact that average votors care more about security means it is desirable to give them more security. There is no "overreaction" if the reaction is precisely what the public desires.

Professor Somin seems to believe that the public overreacts compared to some objectively desirable level. Fundamentally, I share this inclination. But I also confess difficulty in articulating what that level is in a way that does not reflect simple subjective value judgments (i.e. I prefer more civil liberties than the average votor).

I should mention one additional cost that Posner and Vermeule disparages, but which I think is quite wrong to disparage. The executive has an inherent interest in maximizing its own power, that is part of human nature. This provides an incentive to restrict civil liberties even more than what the average votor would initially prefer -- if the executive can use that power to influence votor preferences. Posner and Vermeule may be right that there is little judges can do about this -- but it is a fallacy to conclude that lack of adequate remedy necessarily means it is desirable.

It may be true that previous presidents limited civil liberties more than the Bush Administration

I think this statement is true, though we don't yet know all the violations which might have occurred. Assuming the worst instances have been at least rumored, it's hard to compare different violations. How, for example, might we compare press censorship with internment? There's no obvious basis for comparison.

But "civil liberties" isn't the real issue with this Administration. With a couple of notable exceptions, it hasn't (as far as we know) done much in the way of awful against US citizens. Its real crimes have been committed against foreigners. If we believe the tales of renditions and torture, it's not clear how we'd compare those against, say, FDR's internment order. I'd say the jury's still out.

This aside, though, I pretty much agree with Prof. Somin. I've always found it curious that there are people who believe the Founders weren't aware of the possibility of emergency. They were hardly naifs when they wrote the Constitution. It was designed for peace and for war. While we certainly might defer to the executive in conditions of immediate emergency (e.g., on 9/11), there's no reason to do so when there's time for deliberation and reflection. At that point, it's Congress and the Court which have the strengths essential for the country, not the President.

Ilya makes some good points. I don't necessarily disagree with him, but, at least for devil's advocate purposes, my immediate reaction to his three arguments is as follows:

1. The extent to which Congress avoids "small-group decisionmaking" is related to the extent of party discipline imposed, which varies from time to time. It is probably not realistic to view Congress as having 535 perspectives.

2. Ilya attributes the incentive to over-restrict civil liberties to the responsibility that the executive bears for providing security. Perhaps this suggests that the other two branches have an incentive to under-restrict civil liberties. The Supreme Court, for example, may get the "credit" for expanding "rights," while the President gets the blame for security lapses that occur because of those expanded rights.

3. It isn't self-evident that Presidents, who are limited to eight years in office, have shorter time horizons than congressmen who must run every two years. Being declared "right" six years from now is no consolation to a congressman who is voted out of office; it is to a president. Most presidents act with an eye toward how history will judge them. Most congressmen do not do so, because history will NOT judge them at all. Congressmen are simply relatively anonymous members of a very large committee. Ilya suggests that congressmen will have a longer-term perspective because many of them "serve for many years." But it is two years at a time; the ultimate short horizon.

As for Supreme Court justices, clearly some have an eye toward how history will judge them (think Anthony Kennedy). But they will not mostly be judged on the basis of how safe they kept the country. They also, to a large extent, have the benefit of being part of a committee, albeit a smaller one than Congress.

Presidents not only get greater blame for security lapses, they also get greater blame than individual congressmen or justices for restricting liberties. If presidents are really only concerned with short-run political expediency, they also have to think about the popularity of restricting liberties. No Supreme Court justice is going to lose his job for approving the consignment of individuals to internment camps.

It isn't self-evident that Presidents, who are limited to eight years in office, have shorter time horizons than congressmen who must run every two years. Being declared "right" six years from now is no consolation to a congressman who is voted out of office; it is to a president.

While this is mostly true...its not the whole picture. representatives and senators (to a lesser extent) represent a much smaller and much less diverse group of people (think "safe" districts). This, I think, makes them more likely to act in the long term best interest of those they represent. If they act against this long term interest they are more likely to be voted out because there aren't enough people with a competing interest to ensure reelection. The same concept applies if the congressman continuously capitalizes off of ever changing short term interests. He will be portrayed as "playing pure politics" and "flip-flopping" by his opposition and more likely to lose reelection.

On the other hand, presidents represent a much more diverse group of people who have a much more diverse range of long term interests. Regardless of what long term interests the president supports he is bound to make a lot of people angry. Short term interests, at least the ones that can be politically capitalized on, tend to be held by large and/or active segments of the population. As a result the president has a lot to gain by sacrificing long term interests in favor of short term interests.

1) Theoretical social science aside, I don't see any evidence that Congress can make better decisions than the Executive.

2)If people desire the restriction of liberty for security's sake, then matching those desires is not overreacting. I've never really bought that quote about deserving neither liberty nor security; the entire purpose of law (and, arguably, government) is the restriction of personal liberty for the sake of security, the only real question is where to strike the balance.

3) I'm not convinced that having a shorter maximum term alone negatively impacts the performance and choices of a president. It's a nice hypothesis, but I wouldn't even call it a reasonable theory with what you have there.

A fundamental difference between a president and a member of congress is that the president must balance competing interests, whereas members of a deliberative body can afford to take more extreme positions.

For example, as a member of Congress, I can be all for lower taxes, even when we desperately need money to upgrade infrastructure. Conversely, I could be for a tenfold expansion of handouts and to hell with the taxpayer or the economy. There are many districts that favor one or the other and their representatives mirror this.

But a president must balance competing interests, and has far more incentive to do so (doubly so under gerrymandering and/or various incentive traps) than do the members of congress, who often horsetrade two wrongs between themselves and call it a right.

None of which is a performance guarantee, of course, since individual personalities and abilities are also in play. But from a structural pt of view, methinks the above arg favors the pres.

Your first and third points are features (or bugs) of the executive in all circumstances, not just 'times of crisis'. So is the second point, really; presidents are the focal point of government, and they get the credit and blame for whatever happens. The post seems to be an argument that we should have a prime minister.

Mark Field - as far as terrible things done to foreigners, the firebombing of Dresden comes to mind. But for his death, FDR would probably have ordered the destruction of Nagasaki and Hiroshima as well. Those attacks were arguably human rights violations almost on the scale of Abu Ghraib.

For example, as a member of Congress, I can be all for lower taxes, even when we desperately need money to upgrade infrastructure. Conversely, I could be for a tenfold expansion of handouts and to hell with the taxpayer or the economy.

Another arg favoring the pres would be the "fish with feathers" problem, in that a single leader's approach is more likely to be internally consistent: it may swim, or it may fly, but either way it has a better chance of being viable than does a design by committee that inevitably includes a bit of everything. Even ideas that are individually good won't always work together.

Presidents can hold them if they choose to, but are less likely to be as extreme since they, unlike a single rep, have to satisfy a broader base than does a member of congress. To repeat what I said above:

"None of which is a performance guarantee, of course, since individual personalities and abilities are also in play."

But I think the overall odds somewhat favor the elected offical with the broader base on this point.

Mark Field - as far as terrible things done to foreigners, the firebombing of Dresden comes to mind. But for his death, FDR would probably have ordered the destruction of Nagasaki and Hiroshima as well. Those attacks were arguably human rights violations almost on the scale of Abu Ghraib.

I'll ignore the sarcasm, which I think is misplaced. Dresden was very far from anyone's finest hour, but wartime mistakes get some slack in my view. Deliberately torturing defenseless prisoners does not. In any case, the estimates of the death toll in Dresden seem to be roughly 25,000. The number of renditions is said to be roughly 14,000. In my personal moral calculus, that would make Bush far worse.

On the other hand, presidents represent a much more diverse group of people who have a much more diverse range of long term interests.

Saying Presidents "represent" people is misleading. In one sense, they do. They are elected and we commonly refer to elected officials as "representatives". But the more precise meaning of representation is that it is the collective body of Congress which represents -- mirrors -- the body of the people at large. That, at least, was the theory of the Founders.

The reason this is true is variation. Congress consists of varied interests and views. Presidents are single individuals. It's the variation which creates the representation which Congress, as a collective, provides.

Theoretical social science aside, I don't see any evidence that Congress can make better decisions than the Executive.

I'm not sure what evidence you have in mind, but you just dismissed the whole theory of the US government (see Federalist 10).

A fundamental difference between a president and a member of congress is that the president must balance competing interests, whereas members of a deliberative body can afford to take more extreme positions.

The relevant comparison has to be between the President, as an individual, and Congress or the Court as a group. The fact that individual members of either might take extremist positions is only marginally relevant to their collective action.

I'm not convinced that having a shorter maximum term alone negatively impacts the performance and choices of a president.

This issue was debated extensively at the Convention. Prof. Somin has stated the majority view.

The fact that individual members of either might take extremist positions is only marginally relevant to their collective action.

Incorrect, because as noted, they can also horsetrade their positions on differing issues, resulting in the worst of all worlds, not the best. This is much more than merely being "marginally relevant."

The one area where a group might have a structural advantage over an individual is when it's better to do nothing right than to do something wrong, in which case group infighting and paralysis can be useful for a time. But other than that ... well, adaptation is not what committees are best at. Advising the adaptors ... yes, two heads are better than one for brainstorming ... but for decision-making? I think not.

Or to draw an analogy ... why don't hundreds of writers collaborate on a single novel? It'd be the best ever.

The problem with committee decision-making is that, although individual committee members are accountable to those that elect/appoint them, the committee as a whole is accountable to nobody. There is no penalty for obstructionism, or just plain stupidity.

The fact that individual members of either might take extremist positions is only marginally relevant to their collective action.

Incorrect, because as noted, they can also horsetrade their positions on differing issues, resulting in the worst of all worlds, not the best. This is much more than merely being "marginally relevant."

Horsetrading is unlikely to have a significant impact. for each extreme position there is an ideologically opposite extreme position that more often than not will be held by another congressperson who would also be horsetrading to get votes supporting his side. in the long term these competing influences will balance each other out moderative the congressional or judicial bodies. the same is not true of the presidency...there is no one to balance out extreme views.

Additionally the fact that a president can only serve two terms makes him less likely to seek out compromises or take less extreme viewpoints...he doesn't after to worry about being reelected in his second term.

Indeed, as I noted in my last post, it was far worse under many previous wartime administrations.

On the other hand, the wars and threats faced during those administrations were far more severe than those we face now. It's not surprising that civil liberties suffered more in those times. So any claim that the Bush administration is less prone to eroding civil liberties is unsupported by the above observation.

In fact, it's quite a stretch to call this a "wartime administration". After all, it has only been at war for a brief period - during the initial invasion of Iraq, from March to May 2003.

The most notorious example is FDR's order to intern the Japanese-Americans during World War II despite the near-total absence of evidence that they posed any real threat.

WWII internment (alien detention) claimed some thirty thousand people, some half of which were Japanese. Alien detention is and always has been possible.

What FDR did was order the relocation, from some coastal areas, of all Japanese-Americans as well as, for a short time, some others. "Internment" in the relocation camps was not required but necessary for the fact that most Japanese-Americans had no other place to go.

Always thought this fertile ground for libertarian legal types but few will touch it.

Diversity does not mean that a group Congress cannot be just as irrational or hostile to peacetime civil liberties as the individual Executive. Rather, group dynamics simply make it more difficult for Congress to act as decisively as the individual Executive. Of course, it is just this inability to act decisively which disqualifies Congress from acting in place of a wartime Executive. You simply cannot have nearly 500 commanders in chief and expect to win a war.

Moreover, I see no evidence that the Congress has a longer term perspective than the President simply because incumbent House members get reelected at a high frequency. Observe the Congressional Dems whose views on the war whipsaw back and forth between surrender and staying the course in reaction to fears of retribution at the ballot box from their anti war base for failing to surrender and from everyone else for surrendering when the troops are winning on the ground. This hardly sounds like long term thinking free from the pressures of elections.

I left the Judiciary out of both arguments because they have no business under Article III to set wartime policy - despite the unconstitutional aberration of FISA.

I'm not sure what evidence you have in mind, but you just dismissed the whole theory of the US government (see Federalist 10).

Which really is what this debate comes down to, for me: are people satisfied with separation of powers, or would they prefer a dictatorship? Are we satisified with democracy and the rule of law, or do we think they're inadequate to the present day?

I very much doubt that there's anything in Posner and Vermeule that one couldn't find in Carl Schmitt and his colleagues.

...the entire purpose of law (and, arguably, government) is the restriction of personal liberty for the sake of security...

That's a 'European' view; the 'American' view is that the purpose of law is to enhance liberty: good traffic laws, for instance, arguably improve in practice a right of mobility which they restrict in principle.

I put 'European' and 'American' in scare quotes because the European version of enlightened government -- that it secures as much liberty as is consistent with good order (which is to say, none) -- is popular here in America, too.

But "civil liberties" isn't the real issue with this Administration. With a couple of notable exceptions, it hasn't (as far as we know) done much in the way of awful against US citizens. Its real crimes have been committed against foreigners. If we believe the tales of renditions and torture, it's not clear how we'd compare those against, say, FDR's internment order. I'd say the jury's still out.

I would say it compares pretty favorably to FDR's internment order, when you consider the far smaller number of people involved in the Bush program (a few hundred vs. over 100,000), and their greater average degree of guilt. And this is to say nothing of FDR's firebombing of German and Japanese cities, which killed hundreds of thousands of innocent civilians. FDR, of course, claimed taht the latter was a military necessity (he made similar arguments in favor of the internment order). But Bush can make the same claim for his rendition and interrogation programs.

I would say it compares pretty favorably to FDR's internment order, when you consider the far smaller number of people involved in the Bush program (a few hundred vs. over 100,000), and their greater average degree of guilt.

I think you're making assumptions about the current situation which may not be true. The "number of people involved" in Bush Administration mistreatment might be "only" a few hundred (it's gotta be at least 1000 if we just include Abu Ghraib and Gitmo), but it might also be 10-15,000 (according to some estimates I've seen).

The other significant point (to me, anyway) is the much worse mistreatment meted out (allegedly) by the Bush Administration. Sure, that mistreatment affected a much smaller number, but that's my point -- it's not like there's a calculus of suffering. These are pretty subjective calls. My own personal call is that I'd much rather be interned in Manzanar for 4 years than be "rendered" to Saudi Arabia for 6 months. YMMV.

Bush can make the same claim for his rendition and interrogation programs.

No, he really can't. Not under any law with which I'm familiar and not under any theory of morality outside of "24".

it might also be 10-15,000 (according to some estimates I've seen) - might it be that high according to some estimates you could cite? And why are you so anxious to inflate the number of detainees if the "mistreatment affected a much smaller number, but that's [your] point -- it's not like there's a calculus of suffering"?

That number, if accurate, would presumably encompass the total number detained, not the total number mistreated. Moreover, even if all 15,000 were mistreated, it s till would not be nearly as bad as the detention of Japanese-Americans by FDR, given that a high proportion of the Bush detainees are in fact members of terrorist groups whereas virtually all of the Japanese-American detainees were innocent.

No, he really can't [claim that his actions were justified by military necessity, as FDR claimed in defense of his internment program and bombing of civilians]. Not under any law with which I'm familiar and not under any theory of morality outside of "24".

Actually, the military justification for Bush's actions is much stronger than for FDR's, given that Bush ordered the detention and harsh interrogation of people most of whom really were terrorists and enemy combatants, while FDR's detainees were almost all innocent.

There is a stronger military case for the slaughter of hundreds of thousands of German and Japanese civilians through strategic bombing. Whether or not that argument holds more water than Bush's is a complex issue. But certainly FDR requires a higher burden of proof given the vastly greater number of innocents victimized.

And Bush performed these actions as he feels we are at war with the groups they represent. I am the last person to defend Bush - but he is quite clear on why he acts this way. You might argue semantics that we are or are not at war, but if you have troops mobilized and performing combat actions in the same region for this long, you couldn't really call it anything else. Police action doesn't quite define it...

That number, if accurate, would presumably encompass the total number detained, not the total number mistreated.

That's one of the unknowns.

Moreover, even if all 15,000 were mistreated, it still would not be nearly as bad as the detention of Japanese-Americans by FDR, given that a high proportion of the Bush detainees are in fact members of terrorist groups whereas virtually all of the Japanese-American detainees were innocent.

I think that depends on the extent of the mistreatment, both in numbers and in what, specifically, was done. I'll offer you the choice: 3 years internment in CA or 90 days in a Saudi prison as a suspected terrorist. Given the numbers, that's roughly the relevant tradeoff.

I will say that even if a "high proportion" of the detainees were actually members of terrorist groups -- a very dubious assumption given the numbers from Gitmo in the Seton Hall report -- that would NEVER excuse torturing them. The ban on torture is independent of the guilt or innocence of the victim.

Actually, the military justification for Bush's actions is much stronger than for FDR's, given that Bush ordered the detention and harsh interrogation of people most of whom really were terrorists and enemy combatants, while FDR's detainees were almost all innocent.

No, there is NO justification -- not legal, not military, not ethical -- for torturing people.

But certainly FDR requires a higher burden of proof given the vastly greater number of innocents victimized.

If the higher estimates of Iraqi civilian casualties turn out to be true, I think FDR would win even on this scale.

There is nothing inherently wrong with small group decision making. There is absolutely no reason to think a small group will be less successful than a large group. The composition of the groups is far more important than their size.

Small groups run all of our corporations. Thank God it wasn't done by Congress. Do any of the academics here think the lights would even go on in the university buildings if the faculty senate was in charge?